Defamation claimants face a higher threshold, the Court has clarified, in a further examination of the “serious harm” test introduced by section 1 of the Defamation Act 2013.

Lachaux concerned allegations by the claimant’s ex-wife, reported by three different publishers, that he had abused her and then started proceedings against her for “kidnapping” their son to avoid such charges. Among the preliminary issues to be tried was whether the articles had caused, or would likely cause, serious harm to his reputation within the meaning of section 1.

Old vs. New Law

Previously, a Judge would assess whether a statement was defamatory by reference to the (single) meaning of the words, and their tendency to cause harm. Where a statement met those tests, the cause of action was complete and damage to reputation presumed. But, as detailed in Lachaux, a prospective claimant now faces a new hurdle. He must prove, on the balance of probabilities, that the words have in fact caused serious harm to his reputation, or will probably do so in future. Such harm may be inferred, for instance where the allegations are grave and published widely, but more likely the claimant will have to adduce evidence of actual harm, for example in the form of adverse responses on social media. The Court will have regard to “all the relevant circumstances”.

Ruling in Lachaux, Warby J was at pains to point out that his interpretation of the new test was not radical; since Jameel v Dow Jones, which recognised as an abuse of process claims involving minimal actual harm, “it has no longer been accurate other than technically to describe libel as actionable without proof of any damage.” But his judgment nevertheless calls for an important shift in the early assessment of a potential claim. This is particularly so where he suggests that serious harm should be gauged when the issue falls to be determined, that is to say later than the date the claim form is issued, as mooted in the earlier judgment in Cooke v MGN Ltd. He notes: “A claim will no longer succeed where the meaning is a serious one but the claimant’s reputation in the eyes of those who read the words complained of is not in fact harmed seriously, if at all.” The status of a publication may therefore change from non-defamatory to defamatory: “A cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable.” Equally, confirming Cooke, a statement may change the other way, becoming non-defamatory (and therefore not actionable) by reason of a prompt and full retraction and apology.

Serious Harm and Abuse of Process

In Lachaux, the Court found that four of the five articles complained of had met the test of serious harm. The one that failed was a second article in the Huffington Post, which the Judge found had only belatedly been brought to the Claimant’s attention by his solicitors. Nobody, he concluded,  saw a “pressing need for vindication,” most likely because a claim was already on foot in respect of the previous Huffington Post article containing the same allegations, plus others equally if not more serious.

As well as denying that the Claimant had suffered, or would likely suffer, serious harm to his reputation, AOL, publisher of the Huffington Post, argued the claims against them should be dismissed as an abuse of process per Jameel. Among other matters, AOL questioned whether the Claimant had the necessary connections with, and reputation in, the jurisdiction, also whether vindication was uppermost in the Claimant’s mind. The Court found no abuse of process.

From the fact that Warby J described section 1 as a “more exacting test” than Jameel, it seems reasonable to conclude that serious harm is the primary issue, and higher burden. In other words, where a Judge finds the serious harm test has been met, he is unlikely to find an abuse of process, although the Court can, as in Lachaux, consider other issues such as proportionality.

The Rule in Dingle

Another observation in Lachaux is that section 1 should rebalance the scales between the parties as impacted by the “rule in Dingle”. The rule, which the Judge confirmed remains good law, provides that a defendant cannot rely on previous publications to the same effect as the words complained of in mitigation of damages. Per Lord Denning in that case: “It does a newspaper no good to say that other newspapers did the same. They must answer for the effects of their own circulation without reference to the damage done by others.” What this means in the new legal context, holds Warby J, is that defendants have less room for complaint: where a claimant now has to prove serious harm, it would be unfair if, absent the rule in Dingle, a defendant could invite an inference, without more, of serious harm caused by other publications.

Procedural Issues

From a procedural standpoint, Lachaux has made it clear that, where serious harm is contested, it should usually be tried as a preliminary issue, alongside any issues as to meaning, since to separate the two would be “inherently undesirable”. This confirms Warby J’s earlier judgment in Ames v Spamhaus. In these circumstances, incurring the costs of pleading a defence will generally be unnecessary, as well as unwise.

You can read the full judgment here.

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